Largs Hydropathic Ltd v Largs Town Council
| Jurisdiction | Scotland |
| Judgment Date | 06 September 1966 |
| Docket Number | No. 1. |
| Date | 06 September 1966 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Kissen.
Heritable PropertyTitleDispositionServitudeServient tenement purchased by local authority under statutory power for use as public parkNo reference to relevant statute in dispositive clause of dispositionWhether such reference necessary to enable local authority to claim statutory extinction of servitudePublic Parks (Scotland) Act, 1878 (41 and 42 Vict. cap. 8), sec. 12.
The Public Parks (Scotland) Act, 1878, which empowers local authorities to acquire lands for the purpose of being used as public parks, provides by sec. 12, inter alia, that upon the purchase by a local authority "of any lands required for the purpose of carrying this Act into effect" all servitudes in or relating to such lands shall be extinguished.
In 1919 a town council purchased certain lands which had for many years been used as a public park and which continued to be so used thereafter. In the disposition in favour of the council the seller of the lands acknowledged in the narrative clause that the price had been paid to her by the council "acting under the Public Parks (Scotland) Act, 1878" but there was no other reference to the Act anywhere in the deed. In 1964 a company which owned a hotel situated on ground adjacent to the lands brought an action against the council for,inter alia, declarator that by virtue of their title, granted to them in 1912, the company had a subsisting servitude of prospect over the lands. The council contended that by virtue of sec. 12 of the 1878 Act the servitude had been extinguished upon their purchasing the lands in 1919. The Lord Ordinary rejected this contention on the ground that, in order to bring sec. 12 into operation, a disposition in favour of a local authority purchasing land for use as a public park must contain a clear statement in the dispositive clause that the purchase was made for the purpose of carrying the 1878 Act into effect.
Held (rev. judgment of Lord Kissen) that there was no principle of law to justify that ground of judgment; that the question at issue was whether, in fact, upon a consideration of the whole evidence bearing on the purpose of the purchase, it was made under the 1878 Act or not; and a proof before answer on that questionallowed.
Attorney-General v. Pontypridd Urban CouncilELR, [1906] 2 Ch. 257, applied.
Largs Hydropathic Limited, a company incorporated under the Companies Acts, brought an action against the Provost, Magistrates and Councillors of the burgh of Largs, concluding, inter alia,"(1) For declarator that the pursuers as heritable proprietors of the Elderslie Hotel, Largs, and in virtue of the terms of the heritable titles thereto, have a valid and existing servitude right of prospect over that area of open ground belonging to the defenders, now known as Broomfields, Largs, and lying between Broomfield Place (formerly Brisbane Place) and the sea, and in particular and in terms of the said servitude of prospect, for declarator that no buildings or other works (excepting pier heads, quays, breasts, jetties or other erections necessary for the purpose of a harbour in case any one should ever be formed) are ever to be erected upon Broomfields or made thereon so as to obstruct the view from the pursuers' said property."
The averments of the parties, so far as relevant to this report, were as follows:"(Cond. 2) The pursuers are heritable proprietors of Elderslie Hotel, Largs, which is erected on part of the area of ground belonging to them fronting Broomfield Place (formerly Brisbane Place), Largs, delineated and coloured red on the extract from the plan of the New Town of Largs dated 2nd November 1810 referred to in the titles hereafter produced and referred to [Reference was made to the pursuers' titles, which included two feu contracts between Archibald Swinton, as commissioner for Thomas Brisbane, and the pursuers' predecessors in title, entered into in 1811.] (Ans. 2) Admitted that Elderslie Hotel, Largs, is erected on an area of ground fronting Broomfield Place (formerly Brisbane Place), LargsQuoad ultra not known and not admitted. (Cond. 3) In terms of the said feu contracts a piece of ground shown on the plan already referred to was left between Brisbane Place and the sea as an open area, and Archibald Swinton bound his constituent, his heirs and successors that no buildings or other works shall ever be erected or made thereon, so as to obstruct the view of the houses in the said place, the said piece of ground being to remain as an open area in all time coming. The said open area is now known as Broomfields, and Elderslie Hotel is one of the houses on the said place. The servitude of prospect constituted in these terms is repeated in the disposition of 1912, which forms the pursuers' title, the subjects being conveyed together with the teinds of the whole subjects above disponed, and the privilege of servitude over the said open area in front of Brisbane Place contained in the feu contracts of the said several subjects whereby the said Archibald Swinton bound and obliged the said Thomas Brisbane and his heirs and successors that no buildings or other works should ever be erected or made thereon so as to obstruct the view of the houses in the said place, the said piece of ground being to remain...
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